When Will a Court Allow a Consent Order to be Appealed?

by familyllb on January 22, 2013

When Will a Court Allow a Consent Order to be Appealed?

The husband and wife were married in 2006, had one child together, and separated in 2010. The wife applied to the court for a divorce, and for sole custody of the child (with the husband getting access). The husband wanted custody to be shared.
A few days later, the wife brought an urgent motion for temporary sole custody, exclusive possession of the home, and a restraining order against the husband. After negotiations, the parties essentially agreed to the wife’s request in full (including the restraining order) but the husband was to have supervised access. The court signed a Consent Order to that effect.

Various other motions followed; again, the parties were able to negotiate a settlement. Those matters that remained unresolved were brought before the court in May of 2011. Both parties were represented by counsel at that hearing, and once again a settlement was reached in connection with child custody and support, and spousal support. Minutes of Settlement were signed and presented to the Motion Judge, who agreed to grant an order on consent, i.e. in line with the parties’ mutually-agreed resolution.

A week later – and of his own initiative – the Motion Judge wrote reasons to elaborate on why he was willing to sign the Consent Order. He also suggested that three additional terms be added to it: 1) that the parties cease criticizing each other; 2) that they do not allow others to criticize them in front of their child; and 3) that the wife’s brother’s affidavit be removed from the court records.

The final Order that was ultimately signed by the Motion Judge did contain these three added terms.

The wife later appealed the Order, claiming the judge had made incorrect comments about her behaviour, had treated her in a stressful manner, and had essentially vitiated her consent. The husband countered by pointing out that the appeal was of a Consent Order, and – pursuant to the provisions of the Courts of Justice Act – such an Order could only be appealed with leave of the court. No such consent had been obtained in this case.

The matter eventually came before the Ontario Court of Appeal.

That Court observed that – while there is no specific test for obtaining leave to appeal a Consent Order set out in the Courts of Justice Act – such Orders are essentially formal contracts, made in the context of adversarial judicial proceedings. Therefore, the same principles for setting aside such agreements apply to Consent Orders, as for any other contract: there must be fraud, duress, mistake or some other vitiating circumstance. Essentially, they can be appealed if no true enforceable agreement existed; absent evidence of such lack of consent, leave to appeal should not be granted by a court.

Having said that, matters involving children fall into a special category; in such cases the court has an obligation to give priority to the best interests of the child. Therefore, where the Consent Order involves a child, a leave application is treated somewhat differently, but the threshold for granting such leave still remains high. Specifically, leave should not be granted unless the record demonstrates that the Consent Order, at the time it was made, was not in the child’s best interests.
Applying these principles to the facts at hand: in this case, even though the final version of the Consent Order contained the three additional terms suggested by the judge, it was still made on “consent” as required in law. As such, it qualified as a “Consent Order” for which leave to appeal had to be obtained under the relevant provisions of the Courts of Justice Act.

Next, there was no evidence to suggest that the Motion Judge had failed to consider the child’s best interests, or that he had failed to adhere to his obligations as a judge. Nor was there evidence to indicate that the wife’s consent to the negotiated agreement founding the Consent Order was vitiated by fraud or duress as she claimed. To the contrary, she had her own legal representation throughout the proceedings. The court founds that since the wife’s “assertion of duress is doomed to virtually certain failure,” leave to appeal the Consent Order should be dismissed.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.